How to File a Medical Malpractice Lawsuit

The filing of a medical malpractice lawsuit against a doctor or hospital requires evidence that the defendant acted in breach of his or her duty to patients. This can be evidence from hospitals and medical records.

Our lawyers have experience deposing witnesses in a professional manner. They may be doctors, other medical professionals who are in private practice or staff at a hospital or clinic.

Negligence

When a patient visits a doctor or hospital professional, they are entitled to certain standards of medical treatment. Unfortunately the standards aren't always adhered to or even observed. This can cause devastating results.

If someone is injured or suffers death due to a doctor's malpractice, they may pursue a lawsuit against the medical professional. To prove a case, the person who was injured must prove four legal elements: duty, breach, damages and causation.

Malpractice is defined as an act or omission by the physician that goes against the accepted norms of practice within the medical profession, and results in injury to the patient. It is an aspect of tort law which covers civil wrongs that do not fall under contractual duties or criminal offenses.

Medical negligence is different from normal negligence in that the injured party must prove that the doctor was aware, or ought to have known, that their actions were going to cause harm before they can claim malpractice. Normal negligence doesn't. A surgeon who accidentally cuts or nicks a vein or nerve during surgery is guilty of negligence but not malpractice. This is because the surgeon did not intend to hurt anyone.

In an instance of medical malpractice, the defendant's duty is to treat the patient in line with the standard of care that a reasonably competent health professional with similar experience and education could provide in similar situations. The violation of this duty is a crucial element because it demonstrates that the negligent act caused the injury.

Damages

In a malpractice case, damages are calculated based upon your losses due to a physician's negligence. This could include financial losses, such as future medical costs, and non-economic losses like discomfort and pain.

In order to obtain damages, you need to establish that a doctor acted in violation of the duty of care and that his violation of the standard of care led to injuries, and the damage resulted in measurable financial costs. This is a complex legal analysis that usually requires expert witness testimony.

Some of these losses can be seen quickly, for example an error by a doctor caused an infection or any other medical condition that required additional treatment. Other losses are not as evident, for instance, if your doctor is unable to diagnose you correctly, and you are unable to receive the appropriate treatment.

If a doctor's error causes you to die and you are unable to sue, you may be able to sue for the wrongful death. In these cases you're legally entitled to all the compensation you could have gotten in a survival case in addition to punitive damages.

In most states, there are limitations on the amount you can recover in a malpractice lawyers case. These limits vary from state to state, and are typically applicable to both financial and other damages. Certain states have laws that limit the time you can wait before filing an action.

Time Limits

As with all lawsuits, there are time limits which must be observed or the case may be barred. A malpractice suit must typically be filed between two and six years following the time when the mishap occurred. The exact time frame varies by state.

It is important to talk with an attorney as soon as possible. The law firm will conduct an investigation to determine if there was a malpractice has occurred and if it will be able to stand in court. This can take up to a few weeks or even months.

Medical malpractice cases are subject to different laws and the statute of limitations is frequently altered. In Pennsylvania patients are entitled to two years from the date that they realized the error. This is called the discovery rule.

In other states the statute of limitations starts at the time the malpractice happened. This is an issue when the mistake is not immediately causing symptoms. Imagine, for example, that a doctor negligently left a foreign body inside the body of the patient following surgery. The patient may not discover the foreign object until at least three years after surgery. In this case, the statutes of limitations could have been beginning from the date of surgery rather than the discovery of error.

Expert Witnesses

Expert witnesses are often required to explain facts in medical malpractice cases. The expert of the plaintiff will testify regarding the doctor's duty to the patient, the medical standards for physicians with similar qualifications in the field and specialization, and the ways that the defendant's actions were contrary to the standards. The expert will also explain how the defendant's departure directly impacted the patient's injuries.

The defendant will employ an expert to counter the plaintiff's expert and provide their professional opinion about whether the doctor met the standards of care. Experts may differ, but the fact-finder decides which expert is most reliable.

It is best for the expert to be working in the medical profession since they are more knowledgeable about the current practices. Jurors and judges typically believe that practicing professionals are more credible than experts whose only source of income is testimony in court.

It is also better to work with an expert who has specialized in the area of malpractice. A medical professional with experience treating breast cancer, for instance, could present a an argument that is convincing regarding the cause of an injury. An experienced Ocala medical malpractice lawsuits lawyer will be aware of which expert witnesses to refer your case.